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Victim Participation Needs To Be Strengthened By Providing Private Counsel With A Greater Say In The Trial Conduct

The principal aim of the administrative and judicial processes is to provide a mechanism to protect the interests, physical and psychological well-being and dignity of the victims of serious crimes. One of the prerequisites to achieve the same is to enable the sufferer to be defended and represented reasonably and satisfactorily in the court of law.

Article 68 (3) of the Rome Statute of the International Criminal Court categorically establishes the rights of the victims to participate in the court proceedings by stating that the views and concerns of the victims may be presented by the legal representatives of the victims where the court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

It must be taken into consideration that according to the regulation 2 of the International Criminal Court, counsel shall include legal representatives of victims and privately retained counsel. Therefore, it is indisputable and irrefutable that the administration of justice is based upon providing adequate representation and protection to the victims.

Effective and meaningful participation still eludes victims of crime. In Criminal Appeal No. 1727 of 2019 [Arising out of SLP (Crl.) No. 7848 of 2019] titled Rekha Murarka Vs. The State of West Bengal & Anr. , the Hon'ble Supreme Court opined that though a victim can engage a private counsel to assist the prosecution, such counsel could not be given the right to make oral arguments or examine and cross-examine the witnesses.

This judgment, inadvertently, results in a breach of faith as it limits the participation of the victim in the justice delivery mechanism by restricting the scope of using private prosecution as a workable solution. Simultaneously, it also throws light on the role of the Public Prosecutor as a credible confidant of the victim who is responsible for using every legitimate means to obtain justice. A deeper examination of reasoning given in the aforementioned judgment is bound to have serious consequences for the victim's right to participation. It is a setback to the developing jurisprudence on victim justice.

Under Indian criminal justice system, victims find themselves removed from the proceedings. Their identities are reduced to being mere witnesses. The harm they suffer is reduced to being aggravating or mitigating factors at the time of sentencing. With the State appropriating their victimisation, the actual victims become mere stage props in a larger Scheme.

In 1996, the 154th Law Commission Report suggested a paradigm shift in India's criminal justice system towards a victim-centric notion of justice. The Code of Criminal Procedure (Amendment) Act, 2009 partially accepted this suggestion and granted some rights to the victims of crime. The Act introduced victims' right to a private counsel under Section 24 (8) of Cr. P. C. The Code of Criminal Procedure, 1973 already allowed for pleaders by private persons to submit written arguments with the permission of the court under Sections 301 (2) and 302 allowed a person to conduct the prosecution with permission of the court. These sections were read together to partially secure the victims' right to participation.

Despite these advances, the scheme of victim participation remains far removed from the ideals embedded in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; India is a signatory. The Declaration requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused. Presently, the victims' advocate has an extremely limited role to play wherein he assists the prosecutor rather than represent the interests of the victim before the court. This is manifest from Section 301 (2) of Code of Criminal Procedure, 1973 under which the advocate can only air his views and concerns, not to the court, but to the prosecutor and must act under his directions thereafter.

The only substantial opportunity provided to a private counsel is after the closing of evidence when written arguments may be submitted to the court only after seeking the permission of the court. This stage, after the closing of evidence therefore, is the only stage legislatively recognised as appropriate.

In contrast, the proceedings under the International Criminal Court provides for victim participation at the stage of first, a challenge to the jurisdiction of the International Criminal Court; second, framing of charges; third, opening and closing statements; fourth, making a written submission wherever the personal interests of the victims are affected; and finally, for presenting witnesses to give evidence on issues relating to the personal interests of the victims.

Legal Scrutiny of the judgment

In the Indian judicial procedure, the victim reposes trust in the Government and criminal justice system and harbours expectations that the Public Prosecutor shall perform the duties with utmost sincerity and secure conviction of the offender. However, the Public Prosecutor as minister of justice is duty-bound to assist the court in arriving at a true and clear picture of the case, and hence the damage caused to the victim is incidental.

This undesirable situation gives rise to an expectation gap and widens the trust deficit between the victims and Public Prosecutors. However, the Supreme Court in the Rekha Murarka's case, while relying on the observations propounded by the Hon'ble High Court of Tripura in Smt. Usha Saha v. State of Tripura & Ors., 2014 SCC OnLine Tri 859 held that the victim's counsel has a limited right of assisting the prosecution, which solely extends to the right of suggesting questions to the court or the prosecution. In this regard, the Supreme Court ignored the exiting deficiency of our criminal justice system and completely disregarded the viability of access of private counsel as a solution to the lack of victim representation in a criminal proceeding.

The highest judicial court did not pay heed to the recommendations proposed by the Committee on Reforms of Criminal Justice System 2003 headed by Dr. Justice V. S. Malimath (Malimath Committee). The Malimath Committee recommended the implementation of the right of the victim to be represented by a lawyer of his own choice, provided that the State bears cost of the lawyer in the criminal cases where the victim cannot afford one; right to participate in the proceedings which includes right to advance arguments after the prosecutor, right to know about the progress of the investigation and right to move to the court to ask for further investigation, inter alia. In 2007, the Madhav Menon Committee constituted a draft of the National Policy on Criminal Justice, concurring with the views expressed by Malimath Committee, that advocated for victim protection schemes in certain cases.

In light of the aforementioned recommendations, a proviso to Section 24 of the Code of Criminal Procedure, 1973 in sub-section (8) was inserted by Criminal Procedure Amendment (Act) 2008 to ensure that the victims are adequately represented in the court of law. The proviso inserted reads as:
a victim may be permitted to engage an advocate of his choice to assist the prosecution.
The proviso allows the victim to take the liberty to engage a private pleader to assist the Public Prosecutor in the conduct of a criminal trial.

The Apex Court while interpreting the proviso in the concerned judgment, categorically held that the prime role accorded to the Public Prosecutor cannot be diluted with the engagement of a private pleader by the victim and hence, the private party's pleader is subject to the directions of the Public Prosecutor.

A number of High Courts in India have expressed their trepidation over the role of Public Prosecutors in presenting the case of the victim efficiently and regarded private prosecution as a constitutional safeguard available to the victims. To buttress this claim, the Hon'ble High Court of Madras in Sathyavani Ponrani Vs. Samuel Raj, 2010 (2) MWN (Cr.) 273 opined that …on a reading of the proviso under Section 24 (8) of Cr. P. C, this Court is of the opinion that an advocate engaged by a victim will have to be permitted to take adequate part in a criminal proceedings (sic) thereby performing his role as an advocate representing the victim.

In similar terms, the Hon'ble High Court of Allahabad in Suneel Kumar Singh Vs. State of U.P, 2019 SCC OnLine All 957 observed that …if any adverse order in any proceeding is going to be passed against the prosecution, it is in the interest of justice to hear the Advocate of the informant/complainant in assistance of the prosecution. The court also clearly differentiated between the two most noteworthy phrases­ assist the prosecution and assist the public prosecutor.

From a careful perusal of Sub-section 2 of Section 301 of Cr. P. C., it is correct to perceive that the prosecution shall be conducted by the Public Prosecutor even if any private person instructs a pleader to prosecute any other person in any court. However, proviso added to Section 24 (8) of Cr. P. C authorizes the advocate of the victim to actively participate in the criminal proceedings.

Exclusive Right over Cross-Examination: A Fanciful Mandate

The Public Prosecutors, through the Rekha Murarka's case, received the mandate to operate as a monopoly in cross-examining the defence witnesses. The Apex Court also held that if the private counsel of the victim is allowed to function in the same capacity as that of the Public Prosecutor, then it would ‘constitute a parallel prosecution proceeding by itself'. One must note that the predominant role of cross-examination in improving the efficacy of a criminal trial cannot be gainsaid.

The exercise of the right of cross-examination is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth.

[ix] It would be no exaggeration to assert that that cross-examination is the most difficult branch of all duties of an advocate and this claim substantiated by Edward Cox when he writes that cross-examination, ­­the rarest, the most useful, and the most difficult to be acquired of all the accomplishments of the advocate….

In India, experience shows that the Public Prosecutor are overburdened with cases and hence are not able to achieve the desired results for their clients. The state of affairs certainly suggests that there is a major mismatch between the number of public prosecutors and the cases, thereby overburdening the public prosecutors. In such a scenario, denying the private counsel the opportunity to cross-examine the witnesses is the flagrant violation of the victim's right to be satisfactorily represented in the court. Needless to say, that the private counsel, unlike the Public Prosecutor, can give sufficient attention to judge the human nature and traits of the witnesses to obtain favourable disclosures.

The highest court of the land in Nirmal Singh Kahlon Vs. State of Punjab & Ors. 2008 Cri LJ 4096 explicitly enunciated that the fair trial is a fundamental right of every citizen including the victims of the case under Article 21 of Constitution of India, and the realm of fair trial includes fair and effective opportunities allowed by law to prove innocence. Hence, the denial of access of the private prosecution in cross-examination of the witnesses in a criminal proceeding by the Apex Court is repugnant to the principles of fair trial and thus violates the fundamental right of the victim under Part III of the Constitution of India.

By restricting the scope of the assistance of the private counsel in a criminal proceeding, the Supreme Court, has instigated a secondary victimization of the victims, particularly for victims of sexual offences. It's important to provide relief to the victims of sexual offences by securing better representation of their sexual victimization in the court by the same person who has looked after their legal interests from the beginning.

Thus, limiting the scope of the assistance by the victim's private counsel restricts the integration of the victim's lawyer into the adversarial criminal system, thereby collapsing the fundamentals of fair trial in the administration of justice. In any event, under the role currently envisaged in criminal justice system, the Public Prosecutor cannot sufficiently take into account the interests, needs and requirements of the victims.

The need instead, is to strengthen victim participation by providing private counsel with a greater say in the conduct of the trial without prejudicing the interests of the accused. The cause of victim justice would be greatly served, if the Supreme Court reconsiders its decision and bandage the situation by giving an opportunity to the victim's private counsel to participate in a criminal trial vigorously.

Written By: Damini Singh Chauhan, Semester 10th, The Law School, University of Jammu.
Email; [email protected] 

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